Kim Davis is a Genuine American Heroine

 

September 27, 2015

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Comments for ” Kim Davis is a Genuine American Heroine”

JG said (September 27, 2015):

Thank you for this article Henry. Also, thank you for speaking on behalf of Kim Davis and her strong Christian faith.

The de -Christianization of the Supreme Court was accelerated with the last 3 appointees starting with Ruth Ginsberg who Hillary Clinton helped sponsor. President Obama then finished the process with the appointments of Kagan and Sotomeyer. This tilted the Supreme Court away from the will of the moral majority and replaced it with the will of the perverted minority as the new “law of the land”.

Kim Davis has shown great courage and conviction in the face of this MSM onslaught against her.
They let her out of jail because they feared that by keeping her there she would be recognized as a martyr for Christianity and they didn’t want that movement gaining any support.

I’m still waiting to hear voices of support for Kim Davis from the Vatican, the Jewish synagogues, and the Protestant Church. Where are you Pope Francis, Rabbi Kahn, and John Hagee? Why aren’t you actively supporting this woman?


Henry Makow received his Ph.D. in English Literature from the University of Toronto in 1982. He welcomes your comments at

Source Article from http://henrymakow.com/2015/09/KimDavis-is-a-genuine-American-heroine.html

Houston Police Department – We Don’t Have To Protect Or Serve You

More than a decade ago, the Supreme Court ruled that police have no obligation to ‘protect’ the public. The landmark case dealt with a woman and her estranged husband. The husband kidnapped their children and the woman called police to report the crime. The police never investigated and the man later killed all three kids. (Town of Castle Rock v. Gonzales)

Chief McClellandChief McClelland

Chief McClelland

The police’s motto is ‘to protect and service’ – if they are under no obligation to ‘protect’, what about ‘serve’? According to Police Chief Charles McClelland, of the Houston Police Department, police are under no obligation to ‘serve’ either.

A city-commission study found that HPD failed to investigate over 20,000 crimes in 2013 – crimes with ‘workable’ leads. When questioned about the potentially damning figures, Chief McClelland said that the Houston Police Department does not and should not have a goal of aggressively probing every crime reported to it.

Most of the crimes that HPD were too lazy to investigate, dealt with burglaries. However, over 6,000 of those cases were assaults, hit-and-runs, and other violent crimes. Chief McClelland had a response for these numbers as well – “They’re very minor crimes. I don’t want to dismiss that if someone was a victim of crime, but they are.”

Personally, I don’t see how someone violently assaulting you, your spouse, or even your children are ‘minor crimes’. I would care to guess that if a member of Chief McClelland’s family was robbed, assaulted, or was the victim of a hit-and-run, he would have every officer within a 100 miles investigating the crime. I think what the chief meant to say, was that ‘some people aren’t important enough, rich enough, or (dare I say) white enough, for my officers to help’.

To quote Ademo Freeman, co-founder of CopBlock.org,

If the police don’t have to protect (or serve) us then what are we paying them for? To harass us for petty motor vehicle violations (Samuel Dubose was murdered for this), raid our homes for ‘illegal’ property (Jason Westcott was killed during a raid) or to scare us into compliance for those they do serve? I guess it could be a mixture of all of those things, yet, none of it is good for us (or the LEO).

For numerous other stories about HPD’s blatant disregard for citizens and their rights, please click here.

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Chris Christie Faces Supreme Court Challenge Over Pension Cuts

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(Connor Wolf)  Republican presidential hopeful Gov. Chris Christie is now facing a U.S. Supreme Court challenge with New Jersey unions arguing in an appeal Tuesday his pension cuts violate state law.

Unions have long argued the 2014 pension cuts were in violation of a contractual agreement the state had to fund pensions. An agreement, the unions note, Christie agreed to himself. In June, however, the New Jersey Supreme Court ruled the pension cuts were legal and did not violate the previous agreement.

Not long after losing the case, unions with the support of some state Democrats, vowed to continue fighting. The appeal was signed by the Communications Workers of America, the New Jersey Education Association and the American Federation of Teachers among others. The Supreme Court, though, does have the ability to accept or reject any case they want.

At the center of the conflict is a 2011 budget provision known as Chapter 78 which legally compelled the state to pay retirement pensions in full. Despite this, in 2014 Christie signed Executive Order 156 which cut pension benefits from the $2.25 billion required to only $681 million. The cuts were to address budget problems the state has been facing.

“Chapter 78 does not create a legally enforceable contract that is entitled to constitutional protection,” the June decision, which was obtained by Watchdog, noted. “The Debt Limitation Clause of the State Constitution interdicts the creation, in this manner, of a legally binding enforceable contract compelling multi-year financial payments in the sizable amounts called for by the statute.”

In its decision, the state Supreme Court overturned an earlier ruling by Superior Court Judge Mary Jacobson that stated Christie acted illegally when he withheld billions in pension contributions.

The cost of retirement benefits and pensions for state employees has been a growing problems in many states, including New Jersey. According to a 2014 report from the New Jersey Pension and Health Benefit Study Commission, pensions will causing the state to face massive debt.


Source Article from http://govtslaves.info/chris-christie-faces-supreme-court-challenge-over-pension-cuts/

Divided states: Kentucky clerk case spotlights gaps in legislature and opinions

On the week that Rowen County Clerk Kim Davis was found guilty of contempt of court and jailed after holding out from issuing marriage licenses based on her religious beliefs, a Reuters/Ipsos US opinion poll showed that “49.2 percent of those surveyed support same-sex marriages, 36.5 percent oppose them and 14.3 percent are unsure.”

Following the Supreme Court ruling in June, Kentucky instructed county clerks to issue marriage licenses to same-sex couples. Of the 120 county clerks in the state, 57 have objected. Kim Davis of Rowan County flat-out refused to issue any marriage licenses at all, since denying them only to same-sex couples would be discrimination.

Her refusal made her top story in American media and a target for ridicule in social media.

“Kim Davis is a prisoner of conscience denied in the land of the free. She has been charged with a contempt of a court order and has been put in jail until she chooses to violate her conscience and her convictions and her religious beliefs,” Harry Mihet, one of Davis’ lawyers told RT. Davis is to stay in jail until next week, hoping to be exempt from her duty based on her religious beliefs.

Meanwhile Davis’s deputies issued marriage licenses to four couples. David Moore, one Rowan County resident who has been refused his same-sex marriage certificate, told RT that he believes Davis cannot “choose to not serve minorities.”

“The injunction stated that she needed to issue marriage licenses to anyone who came into her office – she defied that,” said David Moore. ”She is a publically elected official. She is there to serve all of the public and not just specific people that she wants to serve.”

Mehit said that she wanted an opportunity to backtrack, but was not given one. “She is given a choice between jail and violating her conscience. It is no choice at all. The problem here is with the court,” he said.

The combination of same-sex couple wanting to marry and clerks with religious beliefs threw murky legislative areas into the spotlight following the Supreme Court majority 5-4 ruling in Obergefell v. Hodges in June which legalized same-sex marriage.

Several Alabama probate judges do the same thing as Davis, but in their case it may be more difficult to send them to jail because Alabama law states that the judge “ may “ issue a license, while the verb “must” is used in Kentucky.

Two other Kentucky clerks remain adamant about not issuing marriage licenses.

This is not the first time that religious beliefs conflicting with job responsibilities has led to legal woes. Only this week a Muslim flight attendant, Charee Stanley, filed a federal complaint with the Equal Employment Opportunity Commission. She claimed that she had suffered from discrimination after being disciplined for refusing to serve alcohol to airline passengers, which is against her religious beliefs.

Stanley, who works for Detroit-based ExpressJet Airways, apparently arranged for other flight attendants to serve drinks for her, but says one particular coworker complained about the extra work and also ridiculed her Muslim headdress.

But Stanley says ExpressJet has a responsibility to accommodate her beliefs. “I don’t feel like I should have to choose between practicing my religion properly and earning a living.”

The legal situation is a little different for elected employees such as Davis, as they are exempt from Title VII in the majority of cases. However, there is a strong incentive in many states to change this.

Kim Davis’s lawyer Mihet says people should be granted a right to follow their consciences.

“In this country we have a long history of accommodating religious beliefs – even [those] of public officials,” Mihet’s lawyer said. “We do it with respect to prison wardens who do not want to participate in capital punishment, we do it with respect to soldiers who do not want to participate in combat and we do it with respect to doctors who do not wish to participate in abortion.”

Lawmakers in Kentucky are reportedly discussing the ways of accommodating Davis’s request for exemption. Two houses of Kentucky’s legislature are planning special sessions to pass a law that may solve this conundrum.

Meanwhile, Davis’s lawyers are preparing an appeal.

Protests both for and against Davis’s cause have become a frequent view in front of the courthouse in Morehead, Kentucky where she is located. Although there were fewer of them on Friday compared to the crowds on Thursday when the decision was made, the conflict seems far from abating.

“There ought to be a way to figure this out. We shouldn’t be pushing people out of the public square if they have deeply held views, nor should we discriminate against people, particularly, after this court ruling as it relates to sexual orientation,” said Florida Gov. Jeb Bush, one of the few politicians trying to walk the line on the matter.

In a mere matter of days, Davis became the poster face of discrimination against same sex couples, with accusations of “bigotry” mixed with all facts of her personal life, such as having hadthree husbands, were flying high.

“We don’t hate these people,” Davis’s husband said on Friday. “That’s the furthest thing from our hearts. We don’t hate nobody. We just want to have the same rights that they have.”

Source Article from http://www.rt.com/usa/314492-kentucky-clerk-gap-legislature/?utm_source=rss&utm_medium=rss&utm_campaign=RSS

Here’s What’s Next For Kim Davis Now That She’s Been Thrown In Jail For Contempt

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A federal judge on Thursday ordered the indefinite detention of a renegade Kentucky clerk for contempt of court after she refused to follow an order he gave last month to issue marriage licenses to same-sex couples.

Rowan County clerk Kim Davis has resisted multiple orders to begin issuing the marriage licenses, saying it would violate her religious beliefs. On Monday, the Supreme Court declined to intervene in her case.

Since U.S. District Judge David Bunning’s original Aug. 12 order only applied to the couples who sued Davis, he also extended it to include “other individuals who are legally eligible to marry in Kentucky.”

“Her good faith belief is simply not a viable defense,” Bunning said in open court, according to The Chicago Tribune. “I myself have genuinely held religious beliefs … but I took an oath.” 

The issuance of marriage licenses — at a standstill in Rowan County since the Supreme Court decided in June that gay couples have a constitutional right to marry — is expected to resume on Friday.

“Mrs. Davis took an oath,” said Bunning, a George W. Bush appointee. “Oaths mean things.”

Joe Dunman, a civil rights lawyer who represents the same-sex couples in this case, told The Huffington Post that it was never his or his clients’ desire that Davis be incarcerated.

“We didn’t ask for it,” he said. “We didn’t want for her to be put in jail.”

But Bunning ordered her detained anyway. According to the Courier-Journal, he said he could not “condone willful disobedience.”

“If you give people opportunity to choose what orders they follow, that is what potentially causes problems,” he said.

Congress vested federal courts with incredible power to “punish by fine or imprisonment, or both” any individual who disobeys or resists their dictates. This is what’s known as courts’ civil contempt power, and may include orders, judgments, instructions to appear, or other rules.

Now that Davis is behind bars, the judge theoretically could hold a special hearing on Friday or sometime next week to check in on Davis and find out if she is still unwilling to comply, in which case he could keep her detained until further notice.

As the Supreme Court pointed out in 2011 in Turner v. Rogers, Davis’ path to liberty in a case like hers is clear-cut: “Once a civil contemnor complies with the underlying order, he is purged of the contempt and is free.”

Of course, since Davis has contended it is “factually impossible” for her to comply, even in her official capacity, it is hard to tell how long her defiance will last.

Since the prospect of impeachment is a long shot, the path of least resistance, and the end of sorrows for her and many others in Rowan County, would be for her to simply resign.

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Supreme Court Turns Away Kentucky Clerk Who Turned Away Gay Couples Wishing To Marry

The U.S. Supreme Court declined to delay a federal court order Monday that effectively requires a Kentucky clerk to begin issuing marriage licenses to gays and lesbians within her jurisdiction.

The court’s one-line order offered no explanation for its response to Rowan County Clerk Kim Davis.

Around the time Davis filed her plea with Justice Elena Kagan on Friday, the federal judge who initially ordered her to not enforce her “no marriage policy” against gay couples declined to put on hold his own ruling to that effect, according to BuzzFeed News’ Chris Geidner.

Absent an extraordinary move by Davis on Tuesday, she would seem to have no other option but to comply with the judge’s order.

<span class='image-component__caption' itemprop="caption">The Supreme Court declined to delay a federal court order that effectively requires Rowan County Kentucky Clerk Kim Davis to begin issuing marriage licenses to gays and lesbians within her jurisdiction.</span> Credit: Timothy D. Easley/Associated Press The Supreme Court declined to delay a federal court order that effectively requires Rowan County Kentucky Clerk Kim Davis to begin issuing marriage licenses to gays and lesbians within her jurisdiction. Share on Pinterest

In her emergency petition with the court Friday, Davis argued that her “conscience forbids her from approving” marriage documents for gays and lesbians “because the prescribed form mandates that she authorize the proposed union and issue a license bearing her own name and imprimatur.”

Lawyers for Davis had argued in court papers that if she couldn’t be accommodated based on her religious objections, “then elected officials have no real religious freedom when they take public office.”

After the Supreme Court ruled in June that same-sex couples have a constitutional right to marry, Kentucky Gov. Steve Beshear (D) — who was a losing party in that case — ordered state clerks to begin issuing marriage licenses to all couples without regard to sexual orientation.

But Davis refused time and again, even in the face of a federal lawsuit against her and an order from U.S. District Judge David Bunning telling her to comply. Last week, an appellate court told her that she had “little or no likelihood” of winning on her religious-freedom claim.

I hope Ms. Davis will resume issuing marriage licenses tomorrow not just to our clients but to everyone who is eligible under the law,” tweeted Joe Dunman, a local civil rights attorney who was also involved in the case the Supreme Court decided in June.

Despite the Supreme Court’s refusal to intervene in Davis’ case, her dispute remains alive in the court system: She remains free to challenge the merits of Bunning’s decision before the U.S. Court of Appeals for the 6th Circuit. 

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What to Expect When the Supreme Court Returns to Work Next Week

Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.

Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:

Pregnancy Discrimination

Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.

The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf ofstate and local lawmakersnational medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.

Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

Racial Gerrymandering

When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.

The question in two cases Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabamais whether this arrangement is permissible.

When What You Say On Facebook Lands You In Jail

Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Act requiredeach majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.

It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”

Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.

The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.

“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars say is a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.

Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.

Religious Liberty in Prison

There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit called Holt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.

But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.

Israel and Palestine

In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.

Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff in Zivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.

The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch . . . assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department[].” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.

When Cops Stop You By Mistake

Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.

Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.

As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”

As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?

What Is Yet To Come

In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify just how far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.

There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.

Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.

Source Article from http://www.nationofchange.org/what-expect-when-supreme-court-returns-work-next-week-1411570824

What to Expect When the Supreme Court Returns to Work Next Week

Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.

Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:

Pregnancy Discrimination

Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.

The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf ofstate and local lawmakersnational medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.

Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

Racial Gerrymandering

When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.

The question in two cases Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabamais whether this arrangement is permissible.

When What You Say On Facebook Lands You In Jail

Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Act requiredeach majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.

It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”

Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.

The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.

“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars say is a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.

Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.

Religious Liberty in Prison

There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit called Holt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.

But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.

Israel and Palestine

In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.

Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff in Zivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.

The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch . . . assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department[].” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.

When Cops Stop You By Mistake

Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.

Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.

As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”

As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?

What Is Yet To Come

In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify just how far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.

There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.

Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.

Source Article from http://www.nationofchange.org/what-expect-when-supreme-court-returns-work-next-week-1411570824

What to Expect When the Supreme Court Returns to Work Next Week

Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.

Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:

Pregnancy Discrimination

Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.

The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf ofstate and local lawmakersnational medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.

Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

Racial Gerrymandering

When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.

The question in two cases Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabamais whether this arrangement is permissible.

When What You Say On Facebook Lands You In Jail

Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Act requiredeach majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.

It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”

Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.

The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.

“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars say is a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.

Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.

Religious Liberty in Prison

There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit called Holt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.

But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.

Israel and Palestine

In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.

Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff in Zivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.

The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch . . . assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department[].” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.

When Cops Stop You By Mistake

Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.

Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.

As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”

As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?

What Is Yet To Come

In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify just how far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.

There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.

Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.

Source Article from http://www.nationofchange.org/what-expect-when-supreme-court-returns-work-next-week-1411570824

What to Expect When the Supreme Court Returns to Work Next Week

Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.

Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:

Pregnancy Discrimination

Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.

The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf ofstate and local lawmakersnational medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.

Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

Racial Gerrymandering

When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.

The question in two cases Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabamais whether this arrangement is permissible.

When What You Say On Facebook Lands You In Jail

Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Act requiredeach majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.

It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”

Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.

The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.

“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars say is a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.

Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.

Religious Liberty in Prison

There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit called Holt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.

But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.

Israel and Palestine

In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.

Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff in Zivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.

The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch . . . assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department[].” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.

When Cops Stop You By Mistake

Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.

Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.

As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”

As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?

What Is Yet To Come

In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify just how far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.

There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.

Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.

Source Article from http://www.nationofchange.org/what-expect-when-supreme-court-returns-work-next-week-1411570824